Eric B. Benson, et al. - Page 49

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               The realization of the “plan” is demonstrated in a                     
          stipulated exhibit.  For example, in 1992 ERG had $2,704,096 in             
          total sales and allocated $275,867 in royalties to NPI.46                   
          Similarly, in 1993 ERG had total sales of $2,440,139 and                    
          allocated $244,023 in royalties to NPI.47  ERG reported a profit            
          in 1989, 1990, and 1993 of $77,930, $79,576, and $76,941,                   
          respectively.                                                               
               Because many of ERG’s payments to NPI were made after the              
          purported royalties and engineering services were supposedly                
          earned, there had to be a plan or basis upon which the funds were           
          attributed to the tax years at issue.48  At trial, Mr. Bradac               


               46NPI’s original 1992 return reported royalty income of                
          $907,443.                                                                   
               47NPI’s original 1993 return reported royalty income as                
          $220,000.                                                                   
               48Jill Toibin, C.P.A., prepared the Bensons’ 1992 Form 1040.           
          On or about Oct. 3, 1996, Toibin wrote a memorandum to her file             
          which states in pertinent part:                                             
               I asked Burt if all disbursements from ERG were                        
               ordinary and necessary business expenses of the                        
               corporation and he confirmed in the positive.  He                      
               indicated that the corporation has a royalty agreement                 
               with New Process Industries (a related corporation).                   
               In addition, New Process provides services to ERG                      
               through the action of the employee owner (himself) that                
               are not covered by the rent agreement, so that                         
               engineering services are paid to compensate the                        
               corporation for these services.                                        
               At trial, Toibin testified that the classification of                  
          engineering services was on the basis of Burton’s representations           
          that he provided “know-how, show-how, something of value to NPI”.           





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